Although forensic psychiatrists typically are consulted in complex legal matters, geriatric, consultation-liaison, and general psychiatrists are on the front lines of assessing capacity to give informed consent and need for guardianship. Psychiatrists often find such consultations daunting because residency training usually includes little to no formal training in performing psycho-legal assessments. Evaluating issues such as decision-making capacity, guardianship, and capacity to give informed consent requires a delicate balance between autonomy and beneficence. This article reviews 4 common legal issues in geriatric consultation—capacity evaluations, informed consent, guardianship, and elder abuse—and suggests a systematic approach to psycho-legal consultations in older adults.

Confidentiality and dual agency

Every psychiatrist should be familiar with basic principles of medical ethics as well as key aspects of local mental health law. Relevant ethical principles include autonomy, beneficence, confidentiality, and dual agency. A review of all these ethical issues is beyond the scope of this article, so here I highlight confidentiality and dual agency.

Confidentiality—the clinician’s obligation not to disclose private medical information—is a legal as well as an ethical requirement. A psychiatrist who performs a psycho-legal evaluation must disclose to the patient the purpose of the evaluation, that a report will be prepared, and to whom it will be submitted. Exceptions to confidentiality include medical emergencies, mandatory reporting of abuse and infectious diseases, and the duty to protect (warning police and the intended victim when a patient makes a threat).

Dual agency or dual role refers to serving as both a treating physician and a forensic evaluator. Although it is ideal to avoid serving in a dual role, sometimes it is impractical or impossible to avoid doing so, such as in guardianship or civil commitment evaluations, or in state forensic hospitals. In such cases, the psychiatrist must be aware of potential conflicts between clinical and forensic evaluations. A treating psychiatrist primarily serves his or her patient’s best interest, whereas a forensic psychiatrist primarily seeks truth.1 A treating psychiatrist is at risk of consciously or unconsciously biasing his or her psycho-legal evaluation in favor of or against the patient/litigant, depending upon the psychiatrist’s countertransference. Further, performing a psycho-legal evaluation can cause problems in ongoing treatment. A psychiatrist who testifies that his or her fiercely independent patient needs a guardian or nursing home placement will experience significant challenges in continuing to work with that patient.

4 common issues for older adults

Decision-making capacity. Although “capacity” and “competence” often are used interchangeably, “capacity” broadly refers to the ability to perform a specific task, whereas “competence” refers to the legally defined standard for performing a specific task such as making a will. “Competence” is legally determined, whereas “capacity” may be determined clinically.

Capacity usually is task-specific rather than a general construct. The existence of physical or mental illness per se does not mean that a patient lacks capacity. Rather, capacity is determined by whether an individual has specific abilities, regardless of diagnosis. Specific capacities include the ability to give informed consent, manage finances, make a will, or enter into contracts (Table 1).2-4 Appelbaum and Gutheil describe 4 components for assessing specific capacity:

Ability to communicate a choice refers to a patient’s ability to express his or her wishes in a reasonably stable manner. Factual understanding of the issues refers to an individual’s ability to understand the relevant facts before making a decision. Appreciation of the situation and its consequences refers to a person’s ability to rationally understand the effect of decisions. Appreciation is a higher level of understanding than mere factual understanding—eg, a delusional patient who believes himself immortal may intellectually understand that a surgical procedure carries a 50% mortality risk, but may be unable to appreciate the information as it relates to him because he believes he is immortal. Rational manipulation of information refers to a patient’s reasoning process and how the patient integrates data into his or her decision-making process.5

Clinical Point

‘Capacity’ refers to a patient’s ability to perform a specific task, and may be determined clinically

Informed consent. In my experience, capacity to give informed consent is the most commonly requested specific capacity assessment in general medical settings. Informed consent must be knowing, voluntary, and competent. All material information—information that would cause a reasonable person to accept or reject a proposed treatment—should be communicated to the patient. Informed consent requires an understanding of the patient’s condition and indication for treatment, risks and benefits of and alternatives to treatment, and risks of declining treatment.2,3 Exceptions to informed consent include incompetence, medical emergencies, patient waiver of informed consent, and a limited therapeutic privilege (when a physician determines that the information would harm the patient).3

Several instruments can help clinicians assess patients’ capacity to give informed consent. The benefits of using a structured instrument include:

Disadvantages of using instruments include the fact that no instrument can take into account all aspects of a particular case, and some instruments are time-consuming and require training. Structured instruments can be a useful adjunct to the clinical interview in some cases, but should not substitute for it. In a review of 23 instruments for assessing decisional capacity to consent to treatment or clinical research, the MacArthur Competence Assessment Tool for Clinical Research and the MacArthur Competence Assessment Tool for Treatment had the most empirical support, although the authors noted that other instruments might be better suited to specific situations.7

Clinical Point

A structured instrument can help you assess a patient’s capacity to give informed consent

Psychiatrists may be consulted when a patient refuses treatment or decides to leave the hospital against medical advice. The key issue in both situations is whether the patient has capacity to refuse treatment.8 If there is evidence that the patient is mentally ill and poses an imminent risk of suicide or violence or is unable to provide for his or her basic needs, the psychiatrist should assess whether the patient meets criteria for civil commitment.

Many clinicians employ a “sliding scale” approach to competence, requiring a lower degree of competence for consenting to low-risk, high-benefit interventions and a greater degree of competence for higher-risk procedures.5,9 Family members often serve as informal surrogate decision makers for incapacitated patients, except when there is significant family discord or no family members are available.5

Guardianship. Guardians are appointed by courts to make decisions for individuals who have been found incompetent (wards). Although its purposes are beneficent, the guardianship system could do significant harm.10 Determining that an individual is incompetent is tantamount to depriving him or her of basic personhood. In many cases, the ward loses the ability to consent to or refuse medical care, manage his or her finances, enter into contracts, marry, and determine where he or she will live. On the other hand, failing to recognize incompetence can leave a vulnerable person in danger of physical deterioration, abuse, neglect, or exploitation.

It is critical that guardianship evaluations be conducted carefully. In a review of 298 guardianship cases from 3 states, Moye and colleagues11 found that the quality of the reports was significantly better in Colorado, a state with guardianship reforms, but documentation of functional strengths and weaknesses was “particularly rare” in guardianship evaluations and prognosis often was not included. This information is relevant to judges, who need to determine which areas of function are impaired and how long the impairment is likely to last.

Guardianship evaluations often focus on general rather than specific capacity. In other words, often there is not a specific task such as consenting to surgery that the alleged incompetent person needs to perform. Rather, the question is whether an individual can manage his or her finances or make treatment decisions in general. Appelbaum and Gutheil suggest considering 6 factors when assessing general capacity:

The first 4 are closely related to the elements of specific capacity described above. Functioning in one’s environment and extent of demands on the patient attempt to anticipate the tasks that an individual will need to perform. A patient with mild dementia may be unable to manage a complex estate but can handle a bank account and a fixed income. Similarly, it is important to consider the patient’s support system. An impaired patient may function adequately with his wife’s help but may lose the capacity to live independently if his wife dies or becomes impaired.

Traditionally, guardianship has resulted in a complete loss of decision-making ability. Several state legislatures have passed laws allowing for limited guardianship, although orders for limited guardianship remain underutilized.10 Limited guardianship delineates specific areas of incompetence and limits the guardian’s decision-making authority to those areas while leaving intact the ward’s ability to make all other decisions for himself or herself.

The use of less-restrictive alternatives to guardianship—such as powers of attorney, durable powers of attorney, living wills, payees, and trusts—is increasing. A power of attorney allows a patient to authorize a specific individual to act on his or her behalf. The scope of the power of attorney can be limited, such as to manage finances or even to a specific transaction, such as selling a home or car. A durable power of attorney also allows an agent to make decisions on the patient’s behalf but becomes active only when the patient becomes incompetent. It often is used to appoint an individual to make medical decisions on behalf of an incompetent patient. Living wills allow patients to determine what treatment they would like in the event they become incompetent.

Elder abuse. An estimated 1 to 2 million adults age >65 have been abused, exploited, or neglected.12 Elder abuse includes physical abuse, neglect, emotional abuse, sexual abuse, and financial exploitation (including undue influence). Most states have mandatory reporting of elder abuse, although they vary regarding who must report and what the report must entail. Psychiatrists should be vigilant in looking for signs of elder abuse (Table 2),13 regardless of the reason for the consult.

1. Consider the context of the consultation. This includes medical factors (such as the patient’s condition, prognosis, relationship with the treatment team, and recommended course of treatment), legal factors (eg, pending litigation and relevant legal standards for issues such as guardianship), and psychosocial issues (eg, the patient’s current support structure and family conflicts).

Clinical Point

Identifying the legal issues and standards that apply to your patient’s case will help focus your evaluation

2. Identify the legal issue and any relevant legal standards. The legal standard will inform you of the issues you need to address in the evaluation. If an attorney has consulted you, ask him or her to provide the legal standard.

3. Gather relevant collateral information, which may include interviews with family members or a review of financial or medical records.

Mr. G, age 73, visits your office reporting poor sleep, fatigue, and loss of appetite. His son says that Mr. G has been forgetful lately and has called to ask how to perform routine tasks or how to get to stores he often visits. Mr. G takes citalopram, 40 mg/d, for depression and atenolol, 50 mg/d, for high blood pressure. How would you begin to assess Mr. G’s symptoms?